In this IJ archive photo, Jim Kenney, with MMDW, conducts a silt density index reading on water at their experimental desalination plant on Feb. 24, 2006 near the San Rafael Rod and Gun Club. (Robert Tong/Marin Independent Journal archive)
Robert Tong

ONE of the frequent criticisms of California's environmental planning law is that it has become a source of lawsuits.

Cities, counties and other public agencies may try to prepare environmental impact reports so that they are "bulletproof," invulnerable to costly lawsuits, but they usually are the biggest last-ditch targets for legal challenges.

Given that trend, it was not surprising that the North Coast Rivers Alliance, an environmental group, filed a lawsuit contesting the adequacy of the multi-million-dollar environmental impact report prepared by the Marin Municipal Water District for its proposal to build a desalination plant along San Rafael Bay.

Despite years of study, review and even the construction and operation of a trial desalination plant, the alliance filed a lawsuit. It challenged MMWD's environmental report, contending it left many important issues unanswered or unaddressed.

The alliance won the first round, when Marin Superior Court Judge Lynn Duryee ruled that the environmental report was flawed and had failed to adequately analyze potential environmental problems desalination could cause.

MMWD's appeal resulted in a far different ruling.

The state Court of Appeal overruled Duryee, repeatedly endorsed the adequacy of MMWD's environmental review and ruled that the district could file to recoup its legal expenses from the alliance.

The latter sends a chilling message to environmental groups whose pockets are much shallower than those of the public agencies they are challenging.

But the ruling is another sign of the pushback against perceived abuse and costs of the environmental review process.

The appeals court, in its ruling, quoted previous opinions that an environmental report is supposed to serve as an "alarm bell" with the purpose of alerting the public and officials about potential environmental consequences.

The judges ruled that MMWD's analysis fulfilled that objective. In fact, it was exhaustive. That critics may disagree with an EIR's conclusions doesn't mean the study is flawed, or fails to provide substantive information important to decisionmakers.

Meanwhile, MMWD has put its desalination plans on ice, opting instead to bank on re-engineering its reservoirs and ongoing conservation to minimize the risk of drought and the hardships of emergency rationing.

Despite that strategy, the district has a backup plan with a 2009 environmental report, which likely would have to be updated if desalination is revived.

But having a court-approved process and documentation already completed should provide a strong template should the MMWD decide to change strategies.

MMWD's success in defense of its own process sends an important message that its environmental review was not such an easy target.